"_Third_, That the defendants cannot be convicted of robbery, in the capture of the Joseph, unless she was taken with a piratical and felonious intent.

"_Fourth_, That if the defendants, at the time of her capture, were acting under the commission in evidence, and, in good faith, believed that such commission authorized her capture, they did not act with a piratical or felonious intent, and cannot be convicted under either of the first five counts in the indictment."

There are one or two authorities I did not state yesterday, which I beg now to furnish, as some additional authorities have been handed up on the other side:

The Josefa Segunda, 5 Wheaton, 357. In this case Judge Livingston says:

"Was the General Arismendi a piratical cruiser? The Court thinks not. Among the exhibits is a copy of a commission, which is all that in such a case can be expected, which appears to have been issued under the authority of the Government of Venezuela. This Republic is composed of the inhabitants of a portion of the dominions of Spain, in South America, which have been for some time, and still are, maintaining a contest for independence with the mother country. Although not acknowledged by our Government as an independent nation, it is well known that open war exists between them and His Catholic Majesty, in which the United States maintain strict neutrality. In this state of things, this Court cannot but respect the belligerent rights of both parties, and does not treat as pirates the cruisers of either so long as they act under and within the scope of their respective commissions."

In the _United States_ vs. _The Brig Malek Adhel_ (2 Howard's U.S. Rep.

211), as to the Act of 1819, Judge Story (page 232) says:

"Where the Act uses the word piratical, it does so in a general sense,--importing that the aggression is unauthorized by the law of nations, hostile in its character, wanton and cruel in its commission, and _utterly without any sanction from any public authority or sovereign power. In short, it means that the act belongs to the cla.s.s of offences which pirates are in the habit of perpetrating, whether they do it for purposes of plunder, or purposes of hatred, revenge, or wanton abuse of power. A pirate is deemed--and properly deemed_--HOSTIS HUMANI GENERIS. But why is he so deemed? _Because he commits hostilities upon the subjects and property of any or all nations, without any regard to right or duty, or any pretence of public authority._ If he willfully sinks or destroys an innocent merchant ship, without any other object than to gratify his lawless appet.i.te for mischief, it is just as much piratical aggression, in the sense of the law of nations, and of the Act of Congress, as if he did it solely and exclusively for the sake of plunder, _lucri causa_. The law looks to it as an act of hostility; and, being committed by a vessel not commissioned and engaged in lawful warfare, it treats it as the act of a pirate, and one who is emphatically _hostis humani generis_."

Then upon the question that this commission is only by color of authority from an unrecognized power, and that the authority to grant such a commission is disputed, I refer to the case of _Davison_ vs.

_Certain Seal Skins_ (2 Paine's C.C.R. 332), which was a case of salvage of property after a piracy alleged to have been committed by Louis Vernet, at Port St. Louis, in the Eastern Falkland Islands, by taking them from a vessel,--he wrongfully and unlawfully claiming and pretending to be Governor of the Islands, under Buenos Ayres. The Court says:

"Robbery on the high seas is understood to be piracy by our law.

The taking must be _felonious_. A commissioned cruiser, by exceeding his authority, is not thereby to be considered a pirate.

It may be a marine trespa.s.s, but not an act of piracy, _if the vessel is taken as a prize_, unless taken feloniously, and with intent to commit a robbery: the _quo animo_ may be inquired into.

_A pirate is one who acts solely on his own authority, without any commission or authority from a sovereign State_, seizing by force and appropriating to himself, without discrimination, every vessel he meets with; and hence pirates have always been compared to robbers. The only difference between them is that the sea is the theatre of action for the one, and the land for the other."

By referring to this case, pp. 334, 335, your honors will find that Buenos Ayres had no lawful jurisdiction over the islands, and that our Executive Government had so decided; but Buenos Ayres avowed the acts of those claiming to act under her authority, and our Government discharged the prisoners who had been captured as pirates, disclaiming, under those circ.u.mstances, to hold them personally criminally responsible.

The next proposition which I state is this: "That, by the public law of the world, the law of nations, and the laws of war, the commission in evidence, supported by the proof in the case as to the color of authority under which it was issued, would afford adequate protection to the defendants against a conviction for piracy; and being an authority emanating neither from a foreign Prince nor foreign State, nor from a person merely, the offence charged in the last five counts of the indictment, is not within the purview of the 9th section of the Act of 1790, and the defendants cannot be convicted under either of those counts, if they acted in good faith under that commission."

I refer your honors to the case of the _Santissima Trinidad_, 7 Wheaton, 283, to the opinion of Judge Story, in which he says:

"There is another objection urged against the admission of this vessel to the privileges and immunities of a public ship, which may as well be disposed of in connection with the question already considered. It is, that Buenos Ayres has not yet been acknowledged as a sovereign independent Government, by the Executive or Legislature of the United States, and therefore is not ent.i.tled to have her ships-of-war recognized by our Courts as national ships.

We have, in former cases, had occasion to express our opinion on this point. The Government of the United States has recognized the existence of a civil war between Spain and her Colonies, and has avowed a determination to remain neutral between the parties, and to allow to each the same rights of asylum, and hospitality, and intercourse. Each party is, therefore, deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war, and ent.i.tled to be respected in the exercise of those rights. We cannot interfere to the prejudice of either belligerent, without making ourselves a party to the contest and departing from the posture of neutrality. All captures made by each must be considered as having the same validity; and all the immunities which may be claimed by public ships in our ports, under the laws of nations, must be considered as equally the right of each, and as such must be recognized by our Courts of Justice, until Congress shall prescribe a different rule. This is the doctrine heretofore a.s.serted by this Court, and we see no reason to depart from it."

Your honors, by referring to the case of The Bello Corunnes, 6 Wheaton, 152, will see the doctrine laid down distinctly, that acts may be piratical for all civil purposes which would not authorize the conviction of the perpetrators criminally as pirates; _e.g._, a citizen of the United States, taking from a State at war with Spain a commission to cruise against that power, contrary to the 14th art. of the Spanish Treaty;--and the Court held, in that case, that that would involve the consequences of a piracy, for the purpose of condemnation of property; but it would not be criminal piracy, under either the law of nations or of the United States.

On the general subject of privateers I had a reference to Vattel, but I do not think it necessary to read it, because the authorities on that subject cover it so fully.

I come now, if your honors please, to what my learned friend, when he addressed the Court on the part of the Government, has been pleased to call the political part of this case; and I have distinctly stated in my propositions what I contended for on that subject. In the first place, that the Federal Executive Government, and the executive governments of the States, under the Const.i.tution of the United States, each possess the jurisdiction to decide whether their respective acts are within or exceed the limits of their respective const.i.tutional powers, in cases of collision between them in their administrative acts, operating upon the public domain, or upon the State, or its citizens as a body politic.

I shall, without stopping for any discussion, simply state the subordinate propositions by which I think that is established, and give a reference to the authorities. I say, in the first place, as I said to the Jury, that citizens of the United States owe a divided allegiance, partly to the United States and partly to their respective States. They can commit treason against either; for the State const.i.tutions and laws define and punish treason against the States, as the Const.i.tution of the United States does treason against them.

The Federal and State Governments are each supreme and sovereign within the limits of their respective jurisdictions under the Federal and State Const.i.tutions; each operates directly upon the citizen, and each also operates as a check and restriction upon the other, and upon the encroachments of the other, in seeking to extend beyond legitimate limits its jurisdiction over the citizen, or over the public domain common to both. Now, if your honors please, in regard to that, I will very briefly refer you to what I rely upon. I refer, in the first place, to sections 2 and 3, of Article 6th, of the Const.i.tution of the United States.

"_Sec. 2._ This Const.i.tution, and the laws of the United States, _which shall be made in pursuance thereof_, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the const.i.tution or laws of any State to the contrary notwithstanding.

"_Sec. 3._ The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this Const.i.tution; but no religious test shall ever be required as a qualification to any office or public trust under the United States."

In the amendments to the Const.i.tution of the United States, Articles 9 and 10, we find this language:

"The enumeration in the Const.i.tution of certain rights, shall not be construed to deny or disparage others retained by the people.

The powers not delegated to the United States by the Const.i.tution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

I refer to the case of McCulloch _vs._ The State of Maryland, 4 Wheaton, p. 400, in which the opinion was delivered by Chief Justice Marshall. He says:

"No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common ma.s.s."

I cite particularly from pp. 402 and 410. On page 410 his language is as follows:

"In America, the powers of sovereignty are divided between the Government of the Union and those of the States. _They are each sovereign with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other._ We cannot comprehend that train of reasoning which would maintain that the extent of power granted by the people is to be ascertained, not by the nature and terms of the grant, but by its date. Some State const.i.tutions were formed before, some since, that of the United States. We cannot believe that their relation to each other is in any degree dependent upon this circ.u.mstance. Their respective powers must, we think, be precisely the same as if they had been formed at the same time."

The next I refer to is the case of _Rhode Island_ agst. _Ma.s.sachusetts_, 12 Peters, 889, where Judge Baldwin says:

"Before we can proceed in this cause, we must, therefore, inquire whether we can hear and determine the matters in controversy between the parties, who are two States of this Union, _sovereign within their respective boundaries, save that portion of power which they have granted to the Federal Government, and foreign to each other for all but federal purposes_."

I now refer to the case of _Livingston_ vs. _Van Ingen_, 9 Johnson, 574, where Chancellor Kent reasons thus:

"When the people create a single entire Government, they grant at once all the rights of sovereignty. The powers granted are indefinite and incapable of enumeration. Every thing is granted that is not expressly reserved in the const.i.tutional charter, or necessarily retained as inherent in the people. _But when a Federal Government is erected with only a portion of the sovereign power, the rule of construction is directly the reverse, and every power is reserved to the members that is not, either in express terms or by necessary implication, taken away from them and rested exclusively in the Federal Head._"

"This rule has not only been acknowledged by the most intelligent friends to the Const.i.tution, but is plainly declared by the instrument itself. This principle might be ill.u.s.trated by other instances of grants of power to Congress, with a prohibition to the States from exercising the like powers; but it becomes unnecessary to enlarge upon so plain a proposition, as it is removed beyond all doubt by the 10th article of the amendments to the Const.i.tution.

That article declares that 'the powers not delegated to the United States by the Const.i.tution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' The ratification of the Const.i.tution by the Convention of this State was made with the explanation and understanding that 'every power, jurisdiction and right which was not clearly delegated to the General Government remained to the people of the several States, or to their respective State governments.' There was a similar provision in the articles of Confederation, and the principle results from the very nature of the Federal Government, which consists only of a defined portion of the undefined ma.s.s of sovereignty vested in the several members of the Union. There may be inconveniences, but generally there will be no serious difficulty, and there cannot well be any interruption of the public peace in the concurrent exercise of those powers. _The powers of the two Governments are each supreme within their respective const.i.tutional spheres. They may each operate with full effect upon different subjects, or they may, as in the case of taxation, operate upon different parts of the same subject._"

I now refer to the Ma.s.sachusetts Bill of Rights of 1780, art. 4. It reads:

"The people of this Commonwealth have the sole and exclusive right of governing themselves as a free, sovereign and independent State; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction and right, which is not, or may not hereafter be, by them expressly delegated to the United States of America, in Congress a.s.sembled."

I also refer to the New Hampshire Bill of Rights, of September, 1792:

"ART. 7. The people of this State have the sole and exclusive right of governing themselves as a free, sovereign and independent State; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction and right pertaining thereto, which is not, or may not hereafter be by them expressly delegated to the United States of America, in Congress a.s.sembled."

I next beg leave to refer your honors to No. 32 of the Federalist, by Hamilton, who says:

"An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts, and whatever power might remain in them would be altogether dependent on the general will. But as the plan of the Convention aims only at a partial union or consolidation, _the State governments would clearly retain all the rights of sovereignty which they before had, and which were not by that act exclusively delegated to the United States_."

Also, to the Federalist, No. 39, by Madison, in which he says:

"The difference between a Federal and National Government, as it relates to the operation of the Government, is, by the adversaries of the plan of the Convention, supposed to consist in this, that in the former the powers operate upon the political bodies composing the Confederacy in their political capacities; in the latter, on the individual citizens composing the nation in their individual capacities. On trying the Const.i.tution by this criterion, it falls under the national and not the federal character, though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only. But the operation of the Government on the people in their individual capacities, in its ordinary and most essential proceedings, will, on the whole, in the sense of its opponents, designate it, in this relation, a National Government.

"But if the Government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it with regard to the extent of its powers. The idea of a National Government involves in it not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the National Legislature. Among communities united for political purposes, it is vested partly in the general and partly in the munic.i.p.al Legislatures. In the former case all local authorities are subordinate to the supreme, and may be controlled, directed or abolished by it at pleasure. _In the latter the local or munic.i.p.al authorities form_ DISTINCT AND INDEPENDENT PORTIONS OF THE SUPREMACY, _no more subject, within their respective spheres, to the general authority, than the general authority is subject to them within its own sphere. In this relation, then, the proposed Government cannot be deemed a national one, since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and_ INVIOLABLE _sovereignty over all other objects._ It is true that, in controversies relating to the boundary line between the two jurisdictions, the tribunal which is ultimately to decide is to be established under the General Government. But this does not change the principle of the case. The decision is to be impartially made according to the rules of the Const.i.tution; and all the usual and most effectual precautions are taken to secure this impartiality. _Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact_; and that it ought to be established under the general rather than the local Governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated."

I will refer, also, to the letter of Gov. Seward, written to Gov.

Gilmore, of Virginia, October 24th, 1839, taken from the a.s.sembly Journal, 63d Sess., 1840, p. 55. That distinguished public man says:

"You very justly observe, 'that neither the Government nor the citizens of any other country can rightfully interfere with the munic.i.p.al regulations of any country in any way;' and in support of this position you introduce the following extract from Vattel's Law of Nations, 'that all have a right to be governed as they think proper, and that no State has the smallest right to interfere in the government of another. Of all the rights that belong to a nation, sovereignty is doubtless the most precious, and that which other nations ought the most scrupulously to respect if they would not do her an injury.'

"It might, perhaps, be inferred, from the earnestness with which these principles are pressed in your communication, that they have been controverted on my part. Permit me, therefore, to bring again before you the following distinct admissions: 'I do not question the const.i.tutional right of a State to make such a penal code as it shall deem necessary or expedient; nor do I claim that citizens of other States shall be exempted from arrest, trial and punishment in the State adopting such code, however different its enactments may be from those existing in their own State.' Thus you will perceive that I have admitted the sovereignty of the several States upon which you so strenuously insist. To prevent, however, all possible misconstruction upon this subject, I beg leave to add that no person can maintain more firmly than I do the principle that the States are sovereign and independent in regard to all matters except those in relation to which sovereignty is expressly, or by necessary implication, transferred to the Federal Government by the Const.i.tution of the United States. I have at least believed that my non-compliance with the requisition made upon me in the present case would be regarded as maintaining the equal sovereignty and independence of this State, and by necessary consequence, those of all the other States."

I contend, then, that the people of the several States, in forming the State governments, have surrendered to the latter supreme and sovereign jurisdiction over all questions affecting the State, or its citizens as a body politic, not included in the grant of power to the General Government by the Federal Const.i.tution. This surrender necessarily includes the power and jurisdiction to determine, co-ordinately with the Federal Government, whether the Federal Executive Government is acting within or transgressing the limits of its legitimate authority in any case affecting the State as such, or its citizens as a body politic, when the question is not one of the validity or const.i.tutionality of a law of the United States, operating directly upon individual citizens, and conformity to which is to be enforced or resisted by suit or defence in the Federal or State Courts, with the right of ultimate appeal, in either case, to the Supreme Court of the United States; but, on the contrary, brings into collision the Federal and State Executive Departments of the Government, in the exercise of powers which, from their very nature and the mode in which they are exerted, never can be presented for the determination of a Court.

And with regard to that proposition I would cite Vattel, Book I., chap. 1, sec. 2, upon the proposition that jurisdiction to determine such a mixed question of law and fact has been ceded equally to the State as to the Federal Government. Vattel says: